R v Brougham

Case [2015] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROUGHAM

[2015] SASCFC 75

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

20 May 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER

Prosecution application for permission to appeal against an acquittal.

The respondent was charged with the murder of the deceased and was tried by Judge alone. The deceased suffered serious injuries to her face and head and suffered multiple broken ribs resulting in a flail chest. The Judge found that the respondent assaulted the deceased which substantially contributed to her death, but that he did not have at the relevant time the specific intent to kill the deceased or cause her grievous bodily harm required for the offence of murder. The respondent was thus acquitted of murder and convicted of manslaughter.

Section 352(1)(ab)(i) Criminal Law Consolidation Act 1935 enables the Director of Public Prosecutions, with permission of the Court, to appeal against an acquittal on any ground if the trial was by Judge alone. The Director applied for permission to appeal against the acquittal of murder on grounds asserting that the Judge erred in his approach to the element of specific intent.

Held per Peek J, dismissing the application for permission to appeal (Gray and Nicholson JJ agreeing):

1.      The Court will have close regard to the principles of double jeopardy when considering whether to grant an application for permission to appeal against an acquittal. (at [9], [28]-[93])

2.      In the circumstances, it is not possible to infer that the Judge ignored the other injuries when reaching his decision as to specific intent. (at [121])

3.      The Judge clearly delineated his obligation to make findings and decisions on the basis of the whole of the evidence and correctly directed as to the different states of intention required to establish murder and unlawful and dangerous act manslaughter respectively. (at [131])

4.      It was open on the evidence for the Judge not to be satisfied that the required specific intent for murder was established. (at [131])

5.      The proposed appeal has no reasonable prospect of success and permission to appeal should be refused. (at [132])

Criminal Law Consolidation Act 1935 ss 350, 351, 351A(2)(c), 351B, 352(1)(ab), 352(1)(ab)(i), 353(1), 353(2a), referred to.
R v Snow (1915) 20 CLR 315; R v Wilkes (1948) 77 CLR 511; Vallance v The Queen (1961) 108 CLR 56; Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397; Thorogood v Warren (1979) 20 SASR 156; R v Tait (1979) 46 FLR 386; Davern v Messel (1984) 155 CLR 21;

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R v Brougham [2015] SASCFC 75
Case
[2015] SASCFC 75
Decision Date

CaseChat Overview and Summary

The case of *R v Brougham* involved an application for permission to appeal against an acquittal. The prosecution alleged that the respondent had killed the deceased by inflicting blunt force trauma to her head and chest, exacerbated by alcohol toxicity, after she refused his sexual advances. The defence contended that the death was accidental, arising from a consensual encounter where the respondent's reaction to the deceased biting his foot during a massage led to her hitting her head on a spa bath, and subsequent CPR attempts also contributed to her injuries.

The central legal issues before the court concerned the principles of double jeopardy and the requirements for a prosecution appeal against an acquittal. The court considered the fundamental right of citizens to be spared further jeopardy after an acquittal, particularly in superior court trials, and the vexation, misuse of state authority, and potential oppression associated with double trials or risks of conviction. The court also had to determine whether the trial judge had correctly applied the principles of criminal liability regarding the concurrence of intent and causative action in murder, specifically in light of the possibility that chest injuries were caused by CPR rather than a deliberate act.

The court emphasised the strong reasons for exercising caution when considering appeals against acquittals, citing the High Court's pronouncements on the importance of double jeopardy principles, which are even more significant in appeals against acquittals than against sentences. The court noted that while no constitutional guarantee against double jeopardy exists in Australia, the principle is grounded in fundamental civil rights, preventing vexation and potential oppression. Regarding the specific facts, the court affirmed the trial judge's reasoning that while the deceased suffered both head and chest injuries, it was not possible to prove beyond reasonable doubt that the chest injuries, which contributed to death, were deliberately inflicted rather than accidentally caused during CPR. The court reiterated the legal principle that for a murder conviction, the prosecution must prove beyond reasonable doubt that the specific act causing death was performed with the necessary intent, and that act and intent must coincide.

Orders

Orders of the court

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Background

Background to the litigation

It follows that in all of the circumstances, I would dismiss the application for permission to appeal. My more detailed reasons for coming to this conclusion follow.The facts and the prosecution and defence cases A brief overview of the facts and the respective prosecution and defence cases is as follows. The respondent knew the deceased and his parents lived next door to her. At about 6:40pm on Thursday, 11 July 2013 the respondent telephoned the deceased and shortly thereafter he went to her home. He was the last person to see her alive. On the morning of Friday, 12 July 2013, the deceased was found lying unclothed in the garden of her home at Whyalla. The cause of death was a combination of blunt chest trauma and blunt head trauma, together with alcohol toxicity. Police officers attended at the respondent’s home on Sunday, 14 July 2013. He initially told them that he had been at his parents’ house on the evening of Thursday 11 July 2013, that he had left at about 7:00pm and had gone to his home where he remained for the rest of the night. When he was asked whether he knew the deceased and whether he had ever been in a relationship with her, he changed his initial story. He stated that he had telephoned the deceased and asked her for sex; that she had declined but had told him that her husband was away; that he had decided to go to her home to see “how things went”; that he had gone there at about 7:00pm and asked to have sex with her and that she refused. He further stated to police that she had then driven him to his home; he admits that this was a plain lie. The prosecution case was that the accused and the deceased were together, naked in a spa bath in the deceased’s backyard, later in the evening of Thursday 11 July 2013; that the deceased rejected the respondent’s attempts to have sexual intercourse and that he had intercourse without her consent; that he killed her by various blows to the head and chest areas; and that he then departed leaving her dead in the backyard of her house. The defence case was that the respondent did not intend to do the deceased any harm, that her death was accidental and that he was innocent of both murder and manslaughter. The respondent gave evidence that he and the deceased each consumed a large quantity of alcohol; that they engaged in consensual intercourse in the spa bath; that the respondent was then massaging the deceased’s upper body with his foot and while doing so he told her that he wished to terminate their relationship; that she then bit his foot to which he reacted by instinctively kicking out with his leg; that the deceased hit her head on the edge of the spa bath and lost consciousness; that the respondent then attempted to remove her from the spa bath, in the course of which she fell out of the spa; that he then dragged her on to the lawn area and she again fell from his grip; that he then applied forceful cardiopulmonary resuscitation (CPR) but she did not respond; that he then left and walked to his home.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J PEEK J (dissent) NICHOLSON J (dissent)
While there is no requirement for permission to appeal in such cases, it is obvious that a number of appeals against acquittals by Magistrates which have been dismissed would have been instead dealt with by refusal of permission to appeal if there were such a requirement.Prosecution appeals against a judgment of acquittal by an appellate court following an original trial court conviction However, the Judge also correctly appreciated that there was an important distinction between the head injuries and the chest injuries. In relation to the chest injuries, the Judge found that he could not reject as reasonable possibilities that the applicant had applied forceful CPR to the chest of the deceased over a substantial period in an effort to save her life, and that the CPR had caused at least some of the chest injuries which had contributed to death (to be referred to as the CPR factor). Although the Judge held that the CPR factor did not constitute a novus actus interveniens, it did present the problem that once it was fully taken into account, it was not possible to find beyond reasonable doubt that the chest injuries which were sufficiently serious to be a ‘substantial and operating cause of death’ were deliberately caused by the respondent as distinct from being accidentally caused by the respondent while applying CPR. The Judge was clearly correct in his directions that it was necessary to establish concurrency of intent and the relevant causative action by the accused. Thus in Meyers v The Queen, the High Court stated:[98]An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.[98] (1997) 71 ALJR 1488 (Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ). This statement closely accords with the earlier statement of Brennan J in Royall v The Queen (which was cited by the trial Judge here):[99]In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s 18(1)(a).[99] (1990) 172 CLR 378, 404-405.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

The Court went on to note the importance of the double jeopardy principles when considering prosecution applications for permission to appeal against sentence and to emphasise that this Court must take the approach required by the High Court in cases such as Everett v The Queen, where Brennan, Deane, Dawson and Gaudron JJ stated:[2] [A] court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. (Emphasis added)[2] (1994) 181 CLR 295, 299. The application of the double jeopardy principles is all the stronger in a case such as the present which concerns an application for permission to appeal against an acquittal rather than a sentence; at common law, citizens traditionally had a fundamental right to be spared the further jeopardy of an appeal from an acquittal after a trial in a superior court. The basis of the double jeopardy principles was described thus by President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell:[3] It is to be noted that, at the heart of this principle, as so expounded, is not the avoidance of the risk of double punishment as such but the avoidance of vexation, the misuse of the great authority of the State and the potential oppression that may be involved in double trial and double risk of conviction. The principle has a basis different in kind from the related rules which promote finality of litigation, such as res judicata and issue estoppel. … The principle at stake in the development of the double jeopardy rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings. It is based, ultimately, upon a perceived principle fundamental to civil rights.This much has been recognised in jurisdictions like our own which, unlike the United States, provide no constitutional guarantee against double jeopardy. Thus in Cullen v The King [1949] SCR 658 at 668, long before the Charter, Rand J in the Canadian Supreme Court said: At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.[3] (1988) 14 NSWLR 51, 55-56. It is, of course, understandable that the loved ones of a person who has been killed by the accused person will entirely focus their attention on the circumstances of the particular case rather than upon general legal principles that are to be consistently applied to cases across the legal spectrum. In McPartland, the court was dealing with the manslaughter of a child, but the observations apply equally to the loss of a beloved adult:[4]The Court is well familiar with the fact that, particularly in the case of the loss of a beloved young child, the reaction of persons close to the child will likely be that the sentence imposed on those responsible for the death is “not enough”, no matter what that sentence happens to be. This is entirely understandable and is perhaps related to the fact that nothing, including the longest sentence, can be enough to bring the child back to life.The members of the Court have read, and had close regard to, ten detailed victim impact statements and their annexures, as did the sentencing Judge. They are undoubtedly the sincere outpourings of the grief of the authors. It is difficult not to share that grief and to react against the respondents in an angry way. It is no doubt cold comfort for the authors, and others close to the child, to be reminded that the Courts must not act in an angry way but in a measured, consistent way.The persons responsible for the death have pleaded guilty and have been sentenced to substantial, unsuspended prison terms which they commenced serving at the time of sentencing and continue to serve. Those sentences can only be revisited by applying the law and not emotion.[4] (2014) 120 SASR 69, 80-81.